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Delhi District Court

Bypl vs . Tikori Lal Prajapati & Anr. on 29 January, 2016

       IN THE COURT OF SHRI LAL SINGH
 ADDITIONAL SESSIONS JUDGE, SPECIAL COURT
   (ELECTRICITY), TIS HAZARI COURT, DELHI

CC No.269/10
Unique case ID No: 02401R0051652010

BSES Yamuna Power Ltd.
Having its Registered office at:
Shakti Kiran Building,
Karkardooma, Delhi 110032.

Through its Authorized Officer
Sh. Rajeev Ranjan, A. M. (Legal)                     ............ Complainant


                                       Verses
1. Sh. Tikori Lal Prajapati (R/C).                  ........... Accused No.1

2. Sh. Mohd. Tufail (User)
   Both R/o H. No. :- XV-7490, G/F,
   Sidhartha Basti, Multani Dhanda,
   Basti Multani Dhanda, Paharganj,
   Delhi-110055.                                    ...........Accused No.2


                            Date of Institution   :            10.02.2010
                            Reserved for Judgment :            05.01.2016
                            Date of Judgment      :            29.01.2016
JUDGMENT

1). The case of the complainant company, in brief, is that on 20.06.2009 at about 03:10 p.m., an inspection / raid was conducted in respect of K. No.1130P5140700 (new) CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

5PG11311372182 (old) and meter No.13197124, at the premises bearing No.XV-7490, G/F, Sidhartha Basti, Multani Dhanda, Basti Multani Dhanda, Paharganj, Delhi-110055. The inspection team consisted of officials / officers of the complainant company namely Sh. Shashi Kumar (Sr. Manager Enf.), Sh. Suresh Chand (DET- Enf.), Sh. Manoj Kumar (L/M - Enf.) and Sh. Anil Kumar (L/M - Enf.). At the time of inspection accused/representative of consumer was found present at the site and the inspection was carried out in his presence. At the site of the inspected premises, one S/P meter bearing No.13197124 was found and all the seals of the meter was found in place but Real Clock Time (RTC) was found failed, date and time also found mismatched and it may be due to ESD applied by user. During the inspection in the aforesaid premises of the accused persons, the total connected load which was illegally used by the accused in drawing the electricity has been assessed by the inspecting team as 6.363 KW/NX for non domestic category against the sanctioned load of 1.000 KW. At the time of inspection/raid the necessary photography / videography showing the irregularities were taken by the joint CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

inspection team. The inspection team also prepared the connected load report, inspection report and other documents at the site. The meter in question was also seized at the site vide seizure memo.

2). Thereafter, show cause notice was prepared at the site and were given to the accused/representative of consumer and thereby they were asked to appear for personal hearing on 10.07.2009. The accused/ representative of consumer refused to accept the said show cause notice. Therefore, a second show cause notice was issued on 15.07.2009 to the accused/consumer to attend the personal hearing on 24.09.2009. In pursuance to the said show cause notice representative of accused/consumer attended the personal hearing and disclosed the fact that he had purchased the premises in question on 04.05.2009 and there is no pendency of electricity bill. Thereafter, on the basis of material available, the Assessing officer (Enf.-2), passed a detailed speaking order dated 18.12.2009. Consequently, the complainant company also raised a theft assessment bill for Rs.2,86,145/- against the accused persons for Dishonest Abstraction of Electricity (DAE). CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

As such, accordingly the present complaint for the offence under section 135/138 read with section 154 (5) of the Electricity Act,2003 has been filed against the accused persons.

3). Complainant company led the pre summoning evidence. Thereafter, vide order dated 30.11.2010 the accused were summoned to face the trial for the offence alleged against them. Vide order dated 13.12.2011, notice u/s 251 Cr.P.C. was framed against both the accused persons for the offence punishable u/s 135/138/151 of the Electricity Act, 2003, to which accused persons pleaded not guilty and claimed trial.

4). Complainant company in support of its case examined 3 witnesses in all namely PW-1 Sh. Rajeev Ranjan (AR), PW-2 Sh. Shashi Kumar (Sr. Manager) and PW-3 Sh. V. K. Gupta (Sr. Engineer).

5). PW-1 Sh. Rajeev Ranjan (AR) is a formal witness who stated that the present complaint vide Ex.CW-1/1 was filed by him. As per PW-1, complainant company executed power of attorney dated 29.08.2006 in his favour vide Ex.CW-1/2. Cross examination of PW-1 was deferred, however, thereafter complainant company failed to produce PW-1 for cross CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

examination.

6). PW-2 Sh. Shashi Kumar (Sr. Manager) was the member of the inspection team which has inspected the premises in question on 26.06.2009. PW-2 deposed that at the time of inspection they met with accused No.2 Mohd. Tuffail at the site, who permitted them to inspect the premises in question. As per PW-2 on checking they found one single phase meter bearing No.13197124 at the site and electricity supply was running through that meter as being used for commercial purpose. The inspection team also found a bag manufacturing unit in running condition in the premises in question. PW-2 further deposed that on checking of the said meter, it was found that the date and time display in the meter was different from the actual date and time. Inspection team calculated the connected load as 6.363 KW as being used for the commercial purpose. PW-2 prepared the inspection report vide Ex. CW2/1. As per PW-2 the load report Ex.CW-2/2 and meter detail report vide Ex. CW-2/3 were prepared by Sh. Suresh Chand (DET). The meter bearing No.13197124 installed at the site was removed and same was seized vide seizure memo Ex.CW-2/4. Further, as per CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

PW-2 they also took photographs of the connected load and meter vide Ex. CW-2/5 and CD of the same was also prepared vide Ex.CW-2/6. PW-2 also identified the case property i.e meter bearing No.13197124 vide Ex. P1.

In cross examination, PW-2 admitted that he has not checked the identity of persons who stated to be the consumer of meter installed at the premises. Further, it is admitted that he had not checked the ownership document of the premises in question. He also admitted that the seals of meter were intact and in order. PW-2 has also not checked the meter through aqua-check. PW-2 further admitted that he had not downloaded the CMRI data of the meter at the site. PW-2 also shown his ignorance if the property/premises in question was sold by accused No.1 (Tikori Lal) 12 years back. PW-2 also failed to recognize accused No.1 during trial.

7). PW-3 Sh. V. K. Gupta (Sr. Engineer) stated that second and final show cause notice was issued to accused persons by Sh. Amit Gupta (Assessing Officer) vide Ex.CW-2/8 to appear before him (PW-3) for personal hearing on 24.09.2009. He stated that on the basis of said show cause CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

notice, the representative of accused namely Hari Singh appeared before him and filed the reply. Further, in the reply the said Hari Singh stated that he purchased the premises in question vide sale deed dated 04.05.2009 and he has not done any tampering with the meter. On the basis of inspection report, load report, meter detail report and consumption pattern, PW-3 passed a detailed speaking order dated 18.12.2009 vide Ex.CW- 2/10. PW-3 further deposed that as per the inspection report, meter RTC of the meter in question was found failed and meter time and date were also found mismatched from actual date and time. As per PW-3 consumption pattern was found 9.87% (approx.) as per module.

In cross-examination PW-3 admitted that he has not issued any show cause notice to the accused. He also stated that representative of registered consumer (accused No.1 Tikori Lal) attended the personal hearing but there was no authorization letter from RC (Tikori Lal) on record. PW-3 also admitted that Sh. Hari Singh in his reply has not mentioned that accused No.2 Mohd. Tufail was his tenant. Further he admitted that the meter in question was never tested in lab after seizing CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

the same by the inspection team. He also admitted that it is mandatory to test the meter in lab after seizing. PW-3 admitted that there is no record in the present case to connect the accused No.2 with the premises in question.

8). Thereafter, statement of both the accused persons U/S 313 Cr.P.C. was recorded in which they denied the allegations against them. Accused No.1 stated that he has sold the premises in question 13 years back. Accused No.2 stated that he was neither user nor the owner of the premises in question. Accused persons had not led defence evidence.

9). I have heard the arguments of AR of the complainant as well as Ld. Counsel for the accused persons.

10). AR of the complainant submitted that accused were found indulged in Dishonest Abstraction of Energy (DAE) at the time of inspection. He further submitted that at the time of inspection one meter bearing No.13197124 was found installed at site but real clock time (RTC) was found failed and further date and time were also found mismatched at the time of the inspection. He further submitted that theft of electricity was being used by the accused persons for non domestic purpose. CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

He also submitted that the complainant witnesses have proved the offence alleged against the accused persons.

11). On the other hand ld. Counsel for the accused No.1 submitted that the accused No.1 has no concern with the present case as accused No.1 had already sold the property/premises in question. He further submitted that in the cross examination PW-3 admitted that one Sh. Hari Singh who has attended the personal hearing and filed the reply has submitted that he was the owner of the property. He further submitted that PW-3 also admitted that in his speaking order he has mentioned that the premises was purchased by Hari Singh. Counsel for accused No.1 submitted that there is nothing against accused No.1 in the present case.

12). Counsel for the accused No.2 submitted that accused No.2 was neither the owner nor the user of the premises in question. He also submitted that PW-3 admitted that the property in question was purchased by one Sh. Hari Singh but the said Hari Singh was not made party in the present case. Further, the meter in question has not been tested in the lab after seizing the same by the inspection team. He also CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

vehemently argued that there is nothing placed on record by the complainant to connect the accused No.2 with the present case either as a user/tenant or as owner of the premises. He also submitted that the complainant company and its witnesses have failed to prove the offence alleged against the accused No.2.

13). I have considered the submissions of ld. Counsel for the parties and also perused the file and gone through the evidence on record.

14). So as to prove its case the complainant company has examined three witnesses in all. PW-1 Sh. Rajeev Ranjan is a formal witness who has filed the present complaint case vide Ex.CW-1/1. Cross examination of PW-1 was deferred and thereafter, the complainant company has failed to produce PW-1 for cross-examination. Therefore, in this case PW-2 and PW-3 are the only material witnesses as examined by the complainant. PW-2 was the member of inspection team which carried out the inspection in the premises in question. As per PW-2, on the date of inspection i.e. 26.06.2009 accused No.2 Mohd. Tuffail met them at the site who permitted them carrying out the inspection. PW-2 stated that at the site one meter bearing CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

No.13197124 was found installed, however, supply was running through this meter for commercial purpose. He also stated that a bag manufacturing unit was in running condition at the site. He also stated that on checking the said meter, they found the date and time display in the meter is different with actual date and time. Inspection team calculated the connected load to the tune of 6.363 KW and prepared the load report Ex.CW-2/2. Inspection team also prepared inspection report vide Ex.CW-2/1 as well as meter detailed report Ex.CW-2/3. Meter in question was seized vide seizure memo Ex.CW-2/4. Inspection team also took photograph vide Ex.CW-2/5 and prepared the CD of the same vide Ex.CW-2/6.

15). In this case there were four members in the inspection team. However, the inspection report Ex.CW-2/1, load report Ex.CW-2/2 and meter detailed report Ex.CW-2/3 were not signed by one of the member of the inspection team namely Sh. Anil Kumar (Lineman). Further, admittedly the inspection report and documents as stated to be prepared at the site were not pasted at the premises.

As per regulation 52 (ix) Delhi Electricity Supply CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

Code and Performance Standards Regulation, 2007, "the report shall be signed by Authorized officer and each member of the inspection team and the same must be handed over to the consumer or his/ her representative at site immediately under proper receipt. In case of refusal by the consumer or his / her representative to either accept or give a receipt, a copy of inspection report must be pasted at a conspicuous place in / outside the premises and photographed".

In the present case reports were not signed by one of the member of the inspection team namely Sh. Anil Kumar (Lineman). Further, reports were not pasted at the site. Though, PW-2 stated that accused No.2 refused to sign the documents and also did not allow them to paste the reports at the site. However, PW-2 also stated that accused No.2 permitted them to carry out the inspection. This itself shows that there was neither any restrain nor any type of objection by anyone at the site. Therefore, there is no substance in the testimony of PW-2 qua the fact that accused No.2 did not allow them to paste the report. As such, the inspection team has not complied with the aforesaid regulation at the time of inspection. CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

16). PW-2 Sh. Shashi Kumar and PW-3 Sh. V. K. Gupta both specifically admitted that the meter in question was not sent to the laboratory for testing the same. In this case, speaking order dated 18.12.2009 was passed only on basis of inspection report, load report, meter detailed report and consumption pattern. The provision of Regulation 52 (iv) & (viii) of Delhi Electricity Supply Code and Performance Standards Regulation, 2007, is reproduced as under:-

(iv) The authorized officer shall prepare a report giving details such as connected load, condition of meter seals, working of meter and mention any irregularity noticed (such as tampered meter, current reversing transformer, artificial means adopted for theft of energy) as per format given in Annexe XI or as approved by the Commission from time to time.

(viii) In case of suspected theft, the authorized officer shall remove the old meter under a seizure memo and seal it in the presence of consumer/his representative. The licensee shall continue the supply to the consumer with a new meter. The old meter shall be tested in a NABL accredited laboratory and the laboratory shall give a test report, in writing, which alongwith photographs / videographs shall constitute evidence thereof. The list of NABL accredited laboratories shall be notified by the commission. The authorized officer shall record reasons to suspect theft in the premises in his report.

BYPL Vs. Tikori Lal Prajapati & Anr.

In the instant matter, admittedly the meter in question was not sent for testing in a NABL accredited laboratory. Though, in the present complaint Ex. CW-1/1, it is specifically mentioned that meter testing lab (Sarita Vihar) conclusively established that the meter got disturbed, which indicates that meter is frequently subjected to abnormal external disturbances. But there is no lab report placed on record by the complainant company. Even, in the detailed speaking order Ex. CW-2/10 there is no mention or any difference qua testing the meter in the lab. Moreover, PW-2 and PW-3 categorically admitted that the meter in question was not sent to lab for testing. However, in the complaint Ex.CW-1/1 a totally different fact has been mentioned qua testing of meter and hence, same is untenable as there is no meter testing report on record. Therefore, the complainant company has not complied with the aforesaid mandatory regulation of the Act in the present case.

17). As per PW-3, the second and final show cause notice was issue to the accused persons to appear before him on 24.09.2009 and on the basis of said notice, the representative of accused namely Sh. Hari Singh appeared CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

before him and filed written reply. PW-3 admitted that the said Sh. Hari Singh in his reply stated that he purchased the premises in question vide sale deed dated 04.05.2009 and he has not tempered the material. The reply of said Sh. Hari Singh is also placed on record vide Ex.CW-2/9. Though PW-3 stated that Sh. Hari Sing who attended the personal hearing was representative of accused No.1, but in cross-examination he admitted that there was no authorization letter of accused No.1 in favour of said Hari Singh. PW-3 also admitted that Sh. Hari Singh has disclosed that he was the owner of the premises/property in question. PW-3 also admitted that he has mentioned in his speaking order that the premises was purchased by Hari Singh on 04.05.2009. Admittedly in this case the complainant company has not made the said Hari Singh as accused despite of the fact that he attended the personal hearing and disclosed that he has purchased the property in question and he is owner of the premises. The complainant company ought to have made Sh. Hari Singh as an accused after aforesaid disclosure by Sh. Hari Singh. The complainant company has not given any reason or explanation as to what CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

prevented them from impleading Sh. Hari Singh as an accused in this case despite of disclosing by said Sh. Hari Singh that he has purchased the property on 04.05.2009 i.e. much prior to the date of inspection. Further, PW-3 also admitted that there is no record which connects the accused No.2 Mohd. Tuffail with the premises in question either as a user/tenant or as owner. Moreover, complainant company has failed to place on record any documents showing accused No.1 as owner of the premises and accused No.2 as user. Therefore, it has come in the evidence that the premises in question was sold by accused No.1 much before the date of inspection. As such, the complainant company has also failed to connect the accused persons with the premises in question.

18). In the instant matter, speaking order dated 18.12.2009 vide Ex.CW-2/10 was passed by PW-3 Sh. V. K. Gupta. As per final observation in the speaking order vide CW- 2/10 the consumer has intentionally and deliberately fiddled by external means with the meter for sole motives of gain by not allowing exact recording of unit consumed. However, PW-2 who was the member of inspection team which carried out the inspection, after seeing the meter in question during his CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

evidence, categorically stated that there is no tampering of seal of the meter and no illegal resistance was found in the meter. Moreover, PW-3 has passed the speaking order only on the basis of inspection report, load report, meter detailed report and consumption pattern.

However, the consumption pattern itself does not lead to inference of DAE, in absence of cogent evidence of any physical tampering with the meter. In the judgment titled as Col. R.K.Nayyar vs. BSES Rajdhani Power Ltd. 140 (2007) DLT 257 wherein it has been observed as under :-

"This court is of the view that an inference of fraudulent abstraction of energy must be based on the some conclusive evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that meter had been found with broken seal. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one key retained by the consumer and the other by the supplier of the electricity. If a meter is kept in a location that permits any person intending to do mischief to have easy assess to the meter, than to fasten the charge of FAE on the consumer in the event CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

of meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to "fraudulently" abstract electricity. In this context it is necessary to emphasis that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be opened to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of consumption pattern to infer DAE.

As such, in the instant case, the complainant company has failed to show any tangible evidence of dishonest abstraction of energy (DAE). Moreover, admittedly the meter in question was not checked by aqua-check machine. PW-2 admitted that he had checked the meter through aqua-check machine. He also admitted that seals of the meter were intact and in order. Thus, the complainant failed to prove the alleged offence of DAE in the present case.

19). Otherwise, also in this case public persons were CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

neither joined the inspection nor they were examined, so as to substantiate the allegation of DAE case against the accused. There is also no satisfactory explanation on behalf of the complainant as to why the public persons were not joined in the inspection. Moreover, no reasons, whatsoever, has been shown for not joining the public persons in the inspection. This also makes the complainant case unreliable, particularly in the circumstances that the complainant has left many lacuna in the present case.

20). Further, the printout of photographs Ex.CW-2/5 (colly.) and compact disc (CD) Ex.CW-2/6 have not been proved by the complainant company in accordance with law, as the complainant has failed to file the requisite mandatory certificate under Section 65B of the Indian Evidence Act. Failure to file the certificate under Section 65B of Indian Evidence Act, by the complainant is also fatal to the case of the complainant. Moreover, in the complaint as well as in the testimonies of witnesses, it has not been stated as to who has taken the photograph and conducted the videography of the alleged irregularities at the site. In this case neither the name of the photographer/videographer was disclosed nor he was examined. CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

Therefore, the complainant company has failed to prove the print out of the photographs Ex.CW-2/5 (colly.) and CD Ex.CW-2/6 in accordance with law and accordingly, they are no much help to the complainant and complainant company cannot take any benefit from these photographs and CD as placed on record.

21). In view of the foregoing reasons as discussed above, the complainant company has failed to prove the offence against the accused persons beyond reasonable doubt in the present case. As such both the accused (accused No.1 and accused No.2) are entitled for acquittal. Accordingly, accused No.1 and accused No.2 are acquitted for the offence punishable u/s 135/138/151 of the Electricity Act, 2003. Bail bond of both the accused (accused No.1 and accused No.2) stands canceled and their sureties are discharged. Amount, if any, deposited by the accused (accused No.1 and accused No.2) as a condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of inspection dated 26.06.2009 be released by the company after expiry of period of appeal.

22). Both the accused to furnish bail bond in terms of CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.

Section 437 (A) Cr.PC.

23).              File be consigned to record room.




Announced in open court                         ( Lal Singh )
on 29th day of January, 2016             ASJ/Special Court (Elect.)
                                        Tis Hazari/Delhi/29.01.2016




CC No. 269/10
BYPL Vs. Tikori Lal Prajapati & Anr.
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                                                             CC No.269/10
                                       BYPL Vs Tikori Lal Prajapati & Anr.



29.01.2016

Present:          Sh. Jitender Shankar, AR with Sh. P.K. Rai , LR of the
                  complainant company.

Sh. S. S. Gautam, Ld. counsel for accused no.1 with accused no.1.

Sh. Kshitiz Mahipal, Ld. counsel for accused no.2 with accused no.2.

Vide separate judgment, both the accused are acquitted of the offence punishable U/S 135/138/151 of Electricity Act 2003. Bail bond of the accused persons are canceled and surety are discharged. Amount, if any, deposited by both the accused persons as a condition for bail or in pursuance to interim order of the court qua the theft assessment bill raised by the company on the basis of inspection dated 26.06.2009 be released by the company to the accused persons after expiry of period of appeal.

However, in terms of Section 437 A Cr.PC., accused persons are directed to furnish a bail bond for the amount of Rs.15,000/- each with one surety each in the like amount, to appear before the appellate court, as and when such notice is issued in respect of any appeal, which may be filed against this judgment.

Bail bond under section 437 A Cr.PC furnished and same stands accepted.

File be consigned to record room.

(Lal Singh) ASJ/Special Court (Elect.) Tis Hazari/Delhi/29.01.2016 CC No. 269/10 BYPL Vs. Tikori Lal Prajapati & Anr.